Useful Notes on the Delegation of the Power as Administered by Indian Constitution

The power of delega­tion is a constituent element of the legislative power as a whole, and in modern times when the Legislature enact laws to meet the challenge of the complex socio-economic problems, they often find it convenient and necessary to delegate subsidiary or ancillary power to delegates of their choice for carrying out the policy laid down by their Acts.

The Supreme Court held in a case that in each case the Central legislature has empowered an executive authority under its legislative control to apply, as its discretion, Laws to an area which is also under the legislative sway to the Centre.

The variations occur in the type of laws which the executive authority is authorised to select and in the modifications which it is empowered to make in them. The variations are as follows:

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(1) Where the executive authority is permitted, at its discretion, to apply without modification save incidental changes such as name and place) the whole of any Central Act already in existence in any part of India under the legislative sway of the Centre to the new area.

This was upheld by a majority of six to one.

(2) Where the executive authority is allowed to select and apply a Provincial Act in similar circumstances.

This was also upheld by a majority of five to two.

(3) Where the executive authority is permitted to select future Central Law and apply them in a similar way.

This was upheld by five to two.

(4) Where the authorisation is to select future Provincial laws and apply them as above.

This was also upheld by five to two.

(5) Where the authorisation is to repeal law already in force in the area and either substitute nothing in their places or substitute other law, Central or Provincial with or without modification.

This was held to be ultra vires by a majority of four to three.

(6) Where the authorisation is to apply existing laws, either Central or provincial, with alteration and modification.

(7) Where the authorisation is to apply future laws under the same conditions.

The views of the various members of the Bench were not as clear-cut here in these two cases as in the first five cases.

The opinion of Kania, C.J., is found in this case at pages 794- 797. Put briefly, his view was that only Parliament can effect modifications in any essential legislative function, viz. the termina­tion of the legislative policy and its formulation as a rule of conduct.

For this reason, he was prepared to uphold that he called ‘conditional’ or subsidiary or ‘ancillary legislation’ but not the ap­plication by an executive authority of Provincial Acts to which the Central Legislature has not applied its minds at all (p. 801), and for the same reason he excluded the application of all future legislation.

Mr. Justice Mahajan, as he then was, took an even stricter view. He was prepared to authorise delegation of ancillary or ministerial powers (pp. 939 and 946) but except for that he said-

“Parliament has the power to delegate essential legislative func­tions to others whether State Legislatures or executive authorities, ex­cept, of course, functions which really in their true nature are ministerial.”

As against this, three of the Judges were more liberal. Mr. Jus­tice Das, was of opinion that so long as Parliament, does not abdicate or effect itself and retains control in the sense of retaining the right to recall or destroy or set right or modify anything its delegated did, it can confer on the delegate all the right of legislation is itself pos­sessed.

Mr. Patanjali Sastri J., took the same extreme view.

Mr. Fazal Ali J., did not go as far, though he upheld all the Acts which were impugned in this case.

At p.830 he said:

“The legislature must normally discharge its primary legislative function itself and not through others, but it may utilise any outside agent to any extent it finds necessary for doing things which it is un­able to do itself or finds it inconvenient to do so. In other words, it can do everything which is ancillary to and necessary for the full and effective exercise of its power of legislation.

He dealt with the power of modify and said:

“The power of introducing necessary restrictions and modifica­tions incidental to the power to apply or adapt the law. The modifications are to be made within the framework of the Act and they cannot be such as to affect its identity or structure or the essen­tial purpose to be served by it.

The power to modify certainly invol­ves discretion to make suitable changes but it would be useless to give an authority the power to adapt a law without giving it the power to make suitable changes.”

The other two Judges took an intermediate view. Mr. Mukherjee J. said that essential legislative functions cannot be delegated. He pointed out:

“The essential legislative function consists in the determination of choosing of legislative policy and of formally enacting that policy into a binding rule of conduct.

With the merits of the legislative policy the Court of law has no concern. It is enough if it is defined with sufficient precision and definiteness so as to furnish sufficient guidance to the Executive Of­ficer who has got to work it out. If there is no vagueness or in- definiteness in the formulation of the policy, a court of law has got nothing to say in the matter.

The word ‘modification’ does not mean or involve any change of policy but it confined to alteration of such a character which keeps the policy of the Act intact and introduced such changes as are ap­propriate to local conditions of which the executive Government is made the Judge.”

He explained this further and limited the modifications to local adjustments or change of a minor character.

Mr. Justice Bose, said that the delegation cannot extend to the altering in essential particulars of laws which are already in force in the area in question. But he added:

“My answers are, however, subject to this qualification. The power to restrict and modify does not import the power to make es­sential changes.

It is confined to alterations of a minor character such as are necessary to make an Act intended for one area applicable to another and to bring it into harmony with laws already in existence in the State, or to delegate the portions which are meant solely for another area.

To alter the essential character of an Act or to change it in material particulars is to legislature and this namely, the power to legislate cannot be delegated by a Legislature which is not unfettered”.

Thus the majority view was that an executive authority can be authorised by a statute to modify either existing or future laws but not in any essential feature.

Exactly what constitutes an essential fea­ture cannot be enunciated in general term but it is clear that modifica­tion cannot include a change of policy. Therefore, it is clear that delegation of legislative functions can be made to executive authorities within cer­tain limits.

It is competent for the legislature to delegate to other authorities the power to frame rules to carry out the purposes of the law made by it.

The power of delegation is a constituent element of the legisla­tive power as a whole and in modern time when the legislatures enact laws to meet the challenge of the complex socio-economic problems they often find it convenient and necessary to delegate subsidiary or ancillary powers to delegates on their choice for carrying out the policy laid down by their Act.